Legal Definitions - notice-and-comment rulemaking

Notice-and-comment rulemaking is a fundamental process used by federal government agencies in the United States to create new regulations or modify existing ones. It is a cornerstone of administrative law, designed to ensure transparency, public participation, and accountability in the regulatory process. The procedure involves two main stages:

• Notice: An agency first publishes a proposed rule in the Federal Register, which is the official daily publication for rules, proposed rules, and notices of federal agencies and organizations. This notice informs the public about the agency's intention to create or change a regulation, outlining the proposed text, the legal authority for the rule, and the reasons behind it.
• Comment: Following the publication of the proposed rule, the public is given a specific period (often 30, 60, or 90 days) to submit written feedback, data, arguments, and opinions. This feedback, known as "comments," can come from individuals, businesses, advocacy groups, or other interested parties. The agency is then required to review and consider these comments before issuing a final rule. While the agency doesn't have to adopt every suggestion, it must respond to significant comments and explain any changes made or reasons for not making changes.

Here are some examples of how notice-and-comment rulemaking applies:

• Example 1: Environmental Protection Agency (EPA) Setting New Emissions Standards

  Imagine the EPA decides to update regulations on vehicle emissions to reduce air pollution. First, the EPA would publish a notice of proposed rulemaking in the Federal Register, detailing the new proposed limits for pollutants, the scientific data supporting these changes, and the expected impact on public health and the auto industry. During the subsequent comment period, car manufacturers might submit data on the technical feasibility and cost of implementing new technologies, while environmental advocacy groups might provide additional health impact studies or argue for even stricter standards. The EPA would then review all these comments, potentially adjust the proposed rule based on the feedback, and finally publish the new, legally binding emissions standards.

  This illustrates notice-and-comment rulemaking because the EPA provides public notice of its proposed regulation and then allows various stakeholders to comment, influencing the final rule.

• Example 2: Food and Drug Administration (FDA) Updating Food Labeling Requirements

  Suppose the FDA wants to mandate clearer allergen warnings on packaged food products. The agency would issue a notice proposing specific changes to food labels, such as requiring bold print for common allergens or a standardized "contains" statement. During the comment period, food manufacturers might submit feedback on the practical challenges of redesigning packaging, consumer advocacy groups could offer suggestions for making labels even more accessible to individuals with allergies, and medical professionals might provide input on the most critical allergens to highlight. The FDA would consider these diverse perspectives to craft a final rule that balances consumer safety with industry feasibility.

  This demonstrates notice-and-comment rulemaking as the FDA publicly announces its proposed labeling changes and solicits input from the public and industry before finalizing the new regulations.

• Example 3: Department of Transportation (DOT) Revising Rules for Commercial Drone Operation

  Consider a scenario where the DOT proposes new safety regulations for commercial drones, such as requiring specific training for operators or setting new altitude restrictions near airports. The DOT would publish a notice outlining these proposed rules. During the comment period, drone manufacturers might submit technical data on drone capabilities, commercial drone operators could provide feedback on the economic impact of new training requirements, and aviation safety experts might offer insights on potential risks and mitigation strategies. The DOT would then evaluate these comments to ensure the final regulations are effective, practical, and enhance public safety without unduly hindering innovation.

  This showcases notice-and-comment rulemaking by showing how the DOT informs the public of its intent to regulate a new technology and gathers diverse input from affected parties before establishing the final operational rules.